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Judge tosses Boulder ballot case, says there's no right to a secret vote

Group sought to block Boulder County from putting bar codes on ballots

By Erica Meltzer, Camera Staff Writer

Posted:
09/21/2012 10:40:38 AM MDT

Updated:
09/22/2012 10:54:58 AM MDT

From left, Elaine Taylor and Janet Weinman sort ballots in the Opening and Processing room in the Boulder County Clerk and Recorder's Office on Election Day last year. (Jonathan Castner / Camera file photo)

Nov. 6: Election Day. Polling locations will be open 7 a.m. to 7 p.m. All ballots must be in the hands of the Boulder County Clerk & Recorder's Office by 7 p.m.

Source: Boulder County

DENVER -- Saying there's no constitutional right to an anonymous ballot, a federal judge on Friday delivered a major setback to election integrity activists, not only denying their request to block Boulder County from printing ballots marked with identifying bar codes, but throwing out their case entirely.

U.S. District Court Judge Christine Arguello -- in dismissing the lawsuit that also named the Colorado secretary of state and Eagle and Chaffee counties -- said the plaintiffs could not show any "actual or imminent" harm by the inclusion of bar codes on ballots.

Marilyn Marks, president of Citizen Center, the organization that brought the case, called the outcome "shocking." She plans to consult with the organization's attorneys about whether to pursue the case in state court or appeal it in federal court.

"To hear the court say that it's OK for the clerk and all the election workers to have access to how we vote is just shocking," Marks said.

Boulder County Clerk Hillary Hall said she was not expecting the entire case to be dismissed, but was "very pleased" with the outcome.

"This will allow us to focus as we always have on the integrity of the upcoming election," Hall said.

Citizen Center had filed a request for a restraining order in federal court to stop the printing of ballots with distinguishing serial numbers by Boulder County and other counties with similar procedures, including Eagle and Chaffee counties.

Like other counties that use the Hart Voting System, Boulder County's ballots have three sets of numbers and bar codes -- one that identifies the election, one that identifies the precinct and ballot content (which jurisdictions and ballot questions the voter is voting on) and one that identifies the ballot.

Until recently, every Boulder County ballot had a unique number that distinguished it from every other ballot. That number made it easy for election workers to retrieve a specific ballot if it wouldn't scan properly or had over- or undervotes that needed to be assessed manually.

However, election integrity activists contended that through comparisons with voter rolls, those unique numbers could reveal how individual people voted.

State ruling

In an attempt to resolve the issue, Colorado Secretary of State Scott Gessler issued an emergency ruling earlier this year that prohibited any identifying markings on ballots. Because Hall wanted to keep numbers on the ballots to facilitate finding problems during counting, she proposed to repeat each ballot number across precincts and ballot styles so that the number would no longer be unique.

Boulder County Clerk Hillary Hall (Camera file photo)

The Secretary of State's Office accepted this solution, at least for the November election, but activists still had concerns that the ballots could be identified. A similar system was used in the June primaries, and activists say those ballots can be traced to individual voters. They continued to ask for a restraining order and injunction against the relevant counties to stop them printing ballots with identifying marks.

Before attorneys for Citizen Center could make their case Friday, Arguello grilled them on where in federal case law she might find a federal right to have a ballot be completely anonymous. While Colorado law says that ballots cannot have any identifying marks on them, Arguello said she hadn't seen evidence the federal court actually had jurisdiction over the case.

Voter intimidation

Robert McGuire, an attorney for Citizen Center, said the knowledge that someone would be able to find out how people voted could intimidate some voters to the extent that they wouldn't vote at all. He cited case law upholding exclusion zones that prevent campaigning within a certain distance of a polling place.

"This was intimidation based on people talking to you about how you should vote," McGuire said. "If that is intimidation, surely this is."

McGuire said there is little case law that directly addresses the secrecy of the ballot because it is so deeply enshrined in American election processes that no one has challenged it since states first adopted it in the late 19th century. However, because local practices have the potential to impact voters' ability to vote at all, they represented an infringement of federal rights.

Arguello said a voter making a free choice not to vote because of concerns about ballot integrity was not the same as the government preventing someone from voting.

"This is not a poll tax," she said. "This is not saying, 'You cannot vote because you're black.' This is not saying, 'You can't vote because you're a woman.'"

Attorneys for the Secretary of State's Office and the counties said the counties already had taken appropriate measures to ensure ballots cannot be traced. And even if someone with access to voter rolls and ballots could determine how an individual voted, state law forbids that election worker from revealing it to anyone.

"Their theory is premised on the idea that a clerk is going to violate state criminal statute to reveal the vote of a voter," said Deputy Boulder County Attorney David Hughes. "Federal jurisdiction should not be based on the idea that an elected official will violate state criminal statute, especially when no such violation has ever been shown to occur."

In her ruling, Arguello said the fact that there is a state law forbidding election workers from revealing votes indicates that lawmakers never intended to make ballots absolutely anonymous, even to elections workers.

She indicated she did not believe the practices of the various Colorado county clerks violated even state law. Regardless, there was no federal jurisdiction because no fundamental rights were being violated. Arguello said federal judges need to be very careful about establishing new fundamental rights, and she did not believe that Citizen Center's case rose to that level.

Arguello called the harm created by the fear that a vote might possibly be revealed "hypothetical" and "conjectural."

'Critically important'

After the hearing, McGuire said he believes Citizen Center should have been allowed to present evidence and said the judge misunderstood the case. Citizen Center has not, so far, pursued its claims in state court. McGuire said the organization believed and still believes the case raises significant federal issues.

The organization may file the case in state court or pursue a federal appeal. Marks and McGuire said they would need to discuss the best course of action.

However, time is of the essence, as counties are sending their ballots to the printer now and expect to have them back within two weeks.

Marks said it is essential that county clerks and elections workers not be able to trace ballots to voters. If they are allowed to have that information, elected and party officials could determine who their employees voted for, she said.

"We think this is so critically important that something has to be done before the November election," she said.

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